Hiring, firing and discipline - a simple audit

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Frank L. Day, Jr., Jessica Asbridge, Mollie K. Wildmann at FordHarrison
August 21st, 2019

The following list of questions should serve as an introduction to a number of fundamental employment law concepts, and the answers to each question will enable users to determine if “best practices” generally are being followed. Of course, this list of questions will not ensure that full compliance with all laws and regulations that govern the employer-employee relationship, but it is a good starting point. If a “no” answer to any of the below questions is provided, use the page number reference to understand why the answer is “no” to assess whether or not there are any violations of the law within the workplace. The chapter reference is for the book Hiring, Firing and Discipline for Employers, which can be ordered here, and provided for quick reference.

YES  NO    Chapter Reference

Does the company have a regularly updated employee handbook and does it state that employment is not guaranteed? Chapter 8, Policy Manuals and Employee Handbooks

Are hiring managers aware of what questions can and cannot be asked of job applicants?

Chapter 2, Pre-Employment Issues

Chapter 4, Interviews

Are medical examinations given to applicants only after the employment offer, and are they given to all applicants in the job category? Chapter 3, Pre-Employment Testing

What should and should not be asked of personal references?

Chapter 5, Background Checks

Chapter 16, Employment Litigation

Is there a discipline policy and do supervisors understand it and apply it consistently? Chapter 13, Discipline

Should job descriptions be utilized? Chapter 2, Pre-Employment Issues

Is the company prepared to respond to union-organizing activity? Chapter 17, Union Organizing Activity

Do supervisors and managers know when a company can be sued for negligent retention or supervision of an employee? Chapter 16, Employment Litigation

Does law protect whistleblowers?

Chapter 14, Termination

Chapter 16, Employment Litigation

Chapter 18, Social Media

Can employers record surveillance of employees suspected of wrongdoing? Chapter 13, Discipline

Are legally enforceable release agreements used to prevent employees from suing after their termination? Chapter 14, Termination

May an employer terminate an employee or refuse to hire an applicant, based on garnishments?

Chapter 2, Pre-Employment Issues

Chapter 8, Policy Manuals and Employee Handbooks

Chapter 14, Termination

Are all new hires reported to the proper agencies? Chapter 7, New-Hire Reporting

Does the company comply with the special requirements for “Internet applicants?” Chapter 12, Affirmative Action

Are an applicant’s arrest and conviction records factored into employment decisions?

Chapter 2, Pre-Employment Issues

Chapter 5, Background Checks

What steps need to be taken before performing a background check? Chapter 5, Background Checks

Are all medical records kept separate from other personnel files? Chapter 9,  Employee Personnel Files

Are employment contracts used?  Do hiring managers know what qualifies as an “implied contract?”

Chapter 10, Employment Contracts

Chapter 14, Termination

Are employees’ performance documented? Chapter 13, Discipline

Are standards of conduct distributed to employees? Chapter 14, Termination

Are job applications, resumes and promotion/demotion and discharge letters retained for one year? Appendix A, Federal Recordkeeping Requirements

Are records of each employee’s name, address, date of birth, occupation, rate of pay, and compensation retained for three years? Appendix A, Federal Recordkeeping Requirements

Are all required employee notices posted in conspicuous places? Appendix B, Posting Requirements

May an employee be terminated for excessive absenteeism while they serve jury duty? Chapter 14, Termination

What should a termination procedure include? Chapter 14, Termination

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